from the words-are-like-moats-or-barricades-or-something dept

A case involving a bogus arrest stemming from a citizen's attempt to record officers has resulted in the denial of qualified immunity to the officers involved. The Eighth Circuit Appeals Court upheld the lower court's decision on both First and Fourth Amendment issues.

Plaintiff Brian Hoyland was awakened by the sound of police activity in his front yard. Opening his door, he found officers trying to arrest his wife, who was the passenger in a car suspected of being involved in reported drag racing. This is what Hoyland did from 30-40 feet away, ultimately resulting in him being arrested for obstruction. From the opinion [PDF]:

Out of concern for their safety, Hoyland moved his children to the back of the house and retrieved a cell phone to record the incident outside. He intended to remain inside but changed his mind when he believed he heard the officers yell “shoot” or “shooting.” He proceeded to switch the porch light on, open his front door, and hold his phone, which was recording, out in front of him.

And this is the reaction he got:

Within seconds, an officer shouted, “Drop the camera!” McMenomy yelled at Hoyland to go back inside the house. Hoyland remained where he stood and began screaming at the officers. He shouted, “You are in my yard!” and “What is this, a DWI stop, and you guys are doing this? Are you kidding me?” Hoyland also yelled that his wife was handicapped and demanded that the officers do their jobs “the right way.” McMenomy again ordered Hoyland to “stay inside.” Immediately following this command, with Hoyland remaining in the doorway, “the arrest decision was made” by McMenomy who shouted “you are under arrest,” and ordered Hoyland to raise his hands. About thirty seconds of time elapsed between Hoyland’s emergence from his house into the doorway and McMenomy’s pronouncement that he was under arrest. Hoyland did not resist, raised his hands and laid down on the ground, following the instructions given by the officers. He was taken into custody by McMenomy and Cho without incident.

Since the confrontation was recorded, there is little room for variances between Hoyland and the officers' testimony. As the court sees it, there is no question Hoyland did nothing even remotely approaching "obstruction."

Throughout this encounter, Hoyland never left the area around his front door, failing to ever come closer than 30-40 feet from the officers. He never told his wife or Illetschko to disobey the officers’ commands. He never ran away or resisted the officers as he himself was arrested. Finally, he never physically intervened, and never attempted to physically intervene, in the arrest of anyone.

The local prosecutor found the charge baseless. The prosecutor stated it was clear Hoyland came out to inform officers of his wife's disability while recording the event. At best, Hoyland's actions were nothing more than a "fleeting interruption." The Appeals Court comes to the same conclusion.

Having failed with the "it was obstruction" argument, the officers attempted to portray Holyand's arrest as a necessity for officer safety. The court finds this no more convincing.

Any fear of danger the officers felt due to Hoyland’s presence cannot justify an arrest for obstruction. McMenomy asserts that his mind raced in fear of an ambush when Hoyland emerged from the house. This fear, according to the officers, made Hoyland’s arrest reasonable after he refused to go back inside his home. But the officers are mistaken. However reasonable the command for Hoyland to go back inside may have been, his refusal to do so did not constitute obstruction. As Minnesota law makes abundantly clear, obstruction must be either physical obstruction or verbal conduct, such as fighting words, that has the effect of physically obstructing officers in the performance of their duties. Nowhere in Minnesota law does mere physical presence at a distance constitute obstruction. So arresting Hoyland for obstruction due to his continued presence in his doorway was unreasonable under state law.

Even when we consider his verbal conduct, no reasonable officer could construe his shouting as “physically obstructing or interfering” in the officers’ performance of their duties. See Krawsky, 426 N.W.2d at 877. Admittedly, he was shouting criticisms at the officers. But “[i]n a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions.” See Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). And none of Hoyland’s comments could be reasonably interpreted as rising above scrutiny to create a threat or a danger to police or to constitute obstruction.

This allows Hoyland to continue pursuing his Fourth Amendment claim. The court moves on to the First Amendment. Again, the officers argued there was no stifling of Hoyland's First Amendment rights because a) he was obstructing officers, and b) even if he wasn't, he had no Constitutional right to record a traffic stop. The court spends barely any time discussing the officers' obstruction bullshit. Instead, it concentrates on the officers' misguided assertions, which are backed by a previous court decision that's not nearly as helpful as the officers believe it is.

[T]he officers argue that, under Colten v. Kentucky, Hoyland “had no constitutional right to observe a [felony traffic stop] or to engage the [arresting] officer[s] in conversation at that time.”

[...]

But the officers’ reliance on Colten is misplaced for three reasons. First, the location of the traffic stop in Colten—a busy highway—implicated important concerns of public safety. Here, the arrest took place in a residential area with no other vehicles or persons around. And Hoyland was not standing on the side of a highway observing a traffic stop, but rather standing in the doorway of his own home trying to tell the officers that his wife was handicapped…

Here, Hoyland is not challenging the constitutionality of a statute; he is bringing a § 1983 claim against the officers for retaliating against him for exercising his First Amendment rights. Colten, on the other hand, was simply “refusing to move on after being directed to do so . . . without more.”

[L]ater Supreme Court cases make it clear that the First Amendment protects verbal criticism directed at police officers. See, e.g., Hill, 482 U.S. at 461. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. Thus Hoyland’s communications were protected activity.

The court goes on to point out Hoyland has a possibly legitimate argument the arrest was made to prevent him from exercising his First Amendment rights.

McMenomy’s deposition testimony clearly shows that the arrest decision was not made after Hoyland had ignored the initial order to go back inside. It was only after Hoyland had stood in the doorway shouting criticisms and messages about his wife’s physical disability that the arrest decision was made… The arrest decision was not made when Hoyland first disobeyed an order, but only after he had begun exercising his First Amendment rights.

Because the charge was bogus and the officers had no probable cause for Hoyland's arrest, both his Constitutional claims will have to be faced by the government defendants. As the court concludes, immunity is a privilege, not a right, and should be treated as such by courts and those seeking to avail themselves of it.

Police officers have a tough job. They must confront dangerous situations and make difficult decisions in short time frames. This is why we offer the protection of qualified immunity—to insulate officers from the constant threat of litigation while serving and safeguarding their fellow citizens. But to receive that protection, we must find as a matter of law that the officers acted within the confines of the Constitution. They must avoid arresting persons without at least arguable probable cause. They must not take adverse actions against persons for exercising their First Amendment rights. Looking at the facts of this case, we cannot hold as a matter of law that the officers acted constitutionally.

The court doesn't go so far as to establish a right to record police, but it does offer up enough precedential cases to make any arguments to the contrary unlikely to find sympathy with the judges. As for Hoyland, he at least has a chance to make his case at the lower level and receive some sort of compensation for an interaction with officers that began with them ordering him to stop filming and ended in a bogus arrest.

from the I-want-to-carry-a-gun-to-a-soccer-game,-but-don't-want-to-look-unhinged... dept

A Minnesota startup is making headlines today for its novel solution to the age-old problem of "children being frightened by strangers with guns."

Behold, the double-barrel .380-calibre handgun by Ideal Conceal: a gun designed to look exactly like a smartphone, complete with fake camera lens and headphone jack.

"In today's day and age, carrying a concealed pistol has become a necessity," reads the company's website. "But what if you didn't have to conceal?"

"Smartphones are EVERYWHERE, so your new pistol will easily blend in with today's environment," the site further explains. "From soccer moms to professionals of every type, this gun allows you the option of not being a victim."

I'm not sure people are going to be more comforted that people are carrying guns they can't see, especially not US law enforcement, which has already demonstrated it fears cell phones as much as it fears guns.

"In general, the concept of any kind of weapon that's disguised, so that it's not apparent that it's a weapon, would be cause for concern," said Bill Johnson, executive director and general counsel for the National Association of Police Organizations.

Yes, it is a cause for concern. But not just for law enforcement agencies. It's highly doubtful most criminals will have much use for a gun that only holds two bullets. But it does give law enforcement the justification it needs to continue harassing people for recording police activity. When any smartphone could conceivably be a weapon, securing the scene means grabbing all the smartphones in the vicinity. Whether or not this seizure would hold up in court during civil proceedings still needs to be tested, but by that point the elimination of possibly damning footage will have already been accomplished.

Worse, it makes mistaking a cell phone for a gun a justification for shooting someone carrying nothing more dangerous than a communication device. The slim possibility that it may be a weapon would generate the requisite "fear for safety of self and others" needed to deploy deadly force. While 99.9999% of the time, the smartphone will only be a smartphone, the 0.0001% chance that it isn't is a blank check for phone seizures/deadly force.

For those concerned about any of these issues, the nation's gun laws won't be of much comfort. At best, the law would require purchasers to shell out $200 in tax (above the $395 retail price), rather than the normal $5 tax applied to most guns -- as this would fall into the "any other weapon" category. Chances are concealed-carry permits would be needed in states requiring them, even if the weapon is carried in "plain sight."

Ideal Conceal says it's already received 2,500 emails from interested customers, which is really a very small percentage of gun owners. Despite this weapon's niche status, we can expect to see more law enforcement officials and legislators expressing their concern in the near future, possibly in the form of badly-written bills filled with broad wording and unintended consequences.

But the broader harm won't be felt by law enforcement. It will be felt by citizens "armed" with actual cell phones, who will find their devices confiscated more frequently, possibly with the assistance of deadly force.

The indictment handed down by a Dawson County Grand Jury shows Nydia Pinzon Tisdale, 52, is now facing a third charge in connection with her Aug. 23, 2014 arrest.

Initially booked on felony obstruction of officer and misdemeanor criminal trespass charges, authorities have also added misdemeanor obstruction of officer to the counts against her.

"I'm proud to see this case being presented to the grand jury and allowing our court system to work as it was designed," said Dawson County Sheriff Billy Carlisle. "I appreciate the citizens who sat on this grand jury, listening to all the evidence and bringing forth a true bill.

"I look forward to this case working its way on through our courts and hopefully, at the end, we will have a guilty verdict from a jury of our peers."

I imagine Carlisle is hoping for a jury of his peers, rather than, say, a jury of the accused's peers. Jim Galloway at AJC.com points out the timing of this indictment seems rather fortuitous.

One has to wonder if the timely – timeless? — indictment might have something to do with the fact that Tisdale has served notice that she intends to file a $550,000 lawsuit against the Dawson County Sheriff’s Office and Dawson County Board of Commissioners.

The attention paid to Tisdale's recording appears to stem from earlier efforts local politicians made to keep her and her camera away from their gatherings.

In 2012, the mayor of Cumming, Ga., had tossed Tisdale from a city council meeting – for pointing her camera at the proceedings.

[Attorney General Sam] Olens had taken up for the 51-year-old journalist. Two days earlier, the attorney general told her, a judge had signed an order that leveled a $12,000 fine at the city and mayor for violating the state’s open meetings law.

Not only was the city fined by a judge, but it also handed over a $200,000 settlement to Tisdale for violating her First Amendment rights. Attorney General Sam Olens was instrumental in pursuing the lawsuit against the city government.

Obviously, a little antagonism goes a long way. The arrest at Burt's Pumpkin Farm was deemed justified because it occurred on private property. Supposedly the owner had told Tisdale to stop filming the rally. (No explanation has been forthcoming as to why another journalist was allowed to shoot photographs and otherwise record the event). This is the sort of request a person can make on private property, but a rather strange one to make on private property that is also somewhat of a tourist attraction and is, for all intents and purposes, open to the public. On top of that, the political rally was also open to the public, but not, apparently, a certain citizen journalist carrying a video camera.

With Tisdale’s camera rolling, Hudgens started making his campaign stump speech. When talking about Democratic Candidate for U.S. Senate Michelle Nunn, referring to the Chamber of Commerce debate between Perdue and Nunn, Hudgens said listening to Nunn, “I thought I was going to absolutely puke.”

According to FetchYourNews, Dawson GOP Chair Clint Bearden asked Tisdale to stop recording and leave. Farm owner Johnny Burt's statement to Dawson News in response to the grand jury indictment claims he was the one who asked Tisdale to stop recording. The FYN report says all of the involved parties disappeared in one of Burt's barns along with the now-arrested Tisdale to discuss what should be done.

Given the disparity between the eyewitness report and Johnny Burt's statements, it appears the discussion may have included who should be put down on the report as requesting Tisdale to stop recording. Considering everyone else involved would have been acting as representatives of the government (and with no claim to the private property), it would obviously make the most sense (legally) to have the request come from the farm owner.

Despite Tisdale's vocal protests and screaming (as she was arrested), only one person speaking at the rally made any comment about the highly visible arrest of a citizen carrying a camera: District Attorney Sam Olens.

“Let me be possibly politically incorrect here for a second. If we stand for anything as a party what are we afraid of with the lady having a camera filming us? What are we saying here that shouldn’t be on film? What message are we sending? Cause it’s private property they shouldn’t be filming? What is the harm? The harm that this poses is far greater than her filming us. What are we hiding? If we are telling you why we are running and what we stand for, what are we hiding?”

Then, as he pointed in the direction from where Tisdale was drug away he continued:

Also asserted is violation of Tisdale’s rights under the First, Fourth and Fourteenth Amendments to the U.S. Constitution by retaliating against her (Tisdale) for exercising her right to freedom of speech and freedom of the press, as well as by falsely arresting her and using excessive force against her.

While the Fourth and Fourteenth determinations will largely come down to Deputy Wooten's actions, the First Amendment claims will be tough to make stick, considering the incident occurred on private property. Even though her removal was inconsistent (another photographer was never asked to stop or leave) and had a retaliatory appearance, private property owners are given a lot of leeway when it comes to handling guests and visitors on their property. The rally was apparently advertised as an event open to the public, but that sort of invitation doesn't turn private land into a public area.

While Deputy Wooten was off duty when he effected the arrest, this fact does little to decrease the power of his position. Law enforcement personnel still have the power to arrest and detain people, even while off the clock. The alleged retaliation probably can't be proven, especially if the landowner asked for her to be removed after she refused to stop filming. It might be that it never occurred to Johnny Burt to kick her out before being prompted to do so by public officials, but that will be a tough sell in court -- especially if Burt maintains he was the one who demanded that Tisdale stop filming and leave the property.

If nothing else, the timing of the grand jury's indictment is conspicuous in its proximity to the announced lawsuit. It's been more than year since Tisdale's arrest at Burt's Farm, but only six weeks since the lawsuit's announcement. And, during the intervening months, prosecutors -- apparently guided by outgoing Sheriff Carlisle -- have added another charge to Tisdale's potential rap sheet.

Just after 4 p.m. Thursday, a woman stood a few feet away from several Miami Police Department patrol cars with her cellphone camera recording. After a few seconds, an officer entered the frame, escorting a handcuffed young black man to the back of a police car.

Suddenly, the officer put his head inside the car door and appeared to punch the suspect.

“Oh!” a woman exclaimed on the recording, reacting to what was unfolding before her. The woman, who the Associated Press identified as Shenitria Blocker, moved closer, and the officer climbed into the back seat of the car. Moments later, the camera shook and the video ended.

Here's the video:

The camera shake was due to an officer's attempt to take Blocker's phone away from her. Blocker says they then ordered her to delete the footage or face being arrested. While the video does show Blocker moving in very close to the police car to get a better view of the action, any arrestable offense would have been limited to "interference," and that would only be legit if she refused to move away from the vehicle when ordered to. No such order was given. Instead, the cop went for the camera and threatened her with arrest.

Even if the cops can't find a sufficiently malleable "violation" to charge photographers with, the law enforcement community (including police departments and, especially, their unions) finds ways to ensure no damning recording goes unpunished.

To its credit, the Miami Police Department has suspended the officer caught punching the handcuffed arrestee and is investigating the incident. On the other hand, it hasn't said anything about the unidentified officer who attempted to take Blocker's phone, nor has it issued a statement affirming the public's right to film police officers.

The Miami Fraternal Order of Police, on the other hand, is going out of its way to deliver its own brand of "justice" for Blocker having the temerity to catch one of its officers behaving badly.

In a statement, the police union said “social media has placed a very negative tone on law enforcement nationwide” and that the officer in question was “protecting our community.”

Ah. So that's what happened. A now-suspended officer didn't punch an arrested man who was already in the back of a patrol car. Social media did. In fact, social media should be made to answer for the hundreds of incidents of police misconduct every year. At the very least, people should stop running to social media with their clips of police abuse because being a cop is hard work.

But the union has gone farther than simply making the ridiculous assertion that all of these police officers captured on film doing the things they were actually doing is nothing more than negative spin by Social Media Co. LLC. It's also attempting to disparage Blocker herself -- ironically, by using the same social media that's apparently destroying the reputation of its suspect-punching police officer.

The union has delivered screenshots of Blocker's since-removed Facebook page, claiming these show Blocker is a bad person and therefore, all video captured by her phone should be disregarded… or something.

The remainder of the union’s statement focused on criticizing Smith, the woman who at the time they believed recorded the video. It highlighted screenshots of Smith’s Facebook page and accused her of posting photos of herself with men who have handguns.

According to the farcical police officers' group, the real problem is men with guns on Facebook pages, not an officer punching a handcuffed suspect. If only the "community" had done more to raise Ms. Blocker right, Unidentified-and-Suspended Officer X wouldn't have had to punch a handcuffed man in the back of his patrol car.

“Our community has accepted behavior that motivates violence in our younger generation. It’s time for the community to take a stand against this reckless behavior and stop the violence,” he continued. “As the saying goes: It takes a village to raise a child. Guns don’t belong in the hands of children.”

So, remember: the next time you see a police officer beating a handcuffed person, remember that somewhere out there, there's a male with a gun and someone's daughter might be friends with him. Ask yourself: what's more important here? The reputation of the misbehaving officer? Or the reputation of the misbehaving officer? And then put the camera away. Because as the union sees it, the only people above reproach are the officers whose abusive actions prompt poorly-thought out and thoroughly ridiculous statements from their unions.

from the already-forfeited dept

EFF recently learned about a patent that covered a method of filming a yoga class. We reviewed the patent and discovered that it was just as ridiculous as it sounded. Despite our familiarity with absurd patents and our concerns about cursory review at the Patent and Trademark Office (PTO), we were still surprised that this one issued. It seemed the so-called "invention" wasn't the kind of thing that should be patented at all—or at the very least, was not something novel or nonobvious. Yet another stupid patent, and winner of our October accolades.

There's a silver lining to this story. The yoga community affected by this stupid patent wasn't willing to give in. Instead, the community fought back, and as our post was set to go live (and on the day EFF contacted the patentee's lawyers for comment), the patentee publicly disclaimed all interest in the patent. So this stupid patent is now a stupid ex-patent.

Even though the patent owner, YogaGlo, Inc., has already given up, we think the story of this patent is still worth telling. We think it reveals a lot about how our patent system is desperately broken. This story is one of a grave series of omissions and errors that resulted in a patent that should never have been granted in the first place, and a patent applicant incentivized to do everything in its power to keep filing for more. This blog post goes into this history in detail.

Filing for a Patent on Filming a Yoga Class

U.S. Patent No. 8,605,152 claims to cover a "method and apparatus for yoga class imaging and streaming." To be clear, the patent involves slightly more than just filming a class, but not much. The claims require, among other things, "a studio having a front area and a rear area," "a line of sight corridor," and an "image capturing device" at a "height of about three feet." In non-patent speak: a room, a direct view of the instructor, and a camera positioned about three feet above the ground. Figure 2 from the patent, shown below, is described as "an embodiment of the present invention," and shows all the elements of the claimed "invention."

The yoga patent came out of U.S. Patent Application No. 13/763,569 (the "'569 Application"), filed on February 8, 2013. Derik Mills, the CEO of YogaGlo, Inc., a Santa Monica based company that strives to provide "the experience of being in the class at your home," listed himself as the inventor.

At the time the '569 Application was filed, a related patent was also making its way through the PTO. Mills had previously filed U.S. Patent Application 13/220,621 (the "'621 Application") on August 29, 2011. Both applications claimed priority (meaning there was a claim to an earlier date of "invention") to a previous application filed August 27, 2010.

This sort of "continuation practice"—having multiple applications relating to the same or related inventions—is common at the PTO. What was not common, however, was that the original '621 Application was literally identical to the original '569 Application: Mills sought to claim the exact same thing through both the '569 and '621 Applications. (It is unclear why Mills filed two applications with exactly the same claims. One possibility is that Mills felt his chances with the second examiner were better than the first.)

Often, similar or related applications are assigned to the same examiner. But Mills' applications were given to two different examiners for review (we're not sure why). The '569 Application was assigned to Examiner Nhon T. Diep and the '621 Application was Examiner Mohammad J. Rahman.

Both the '569 Application and the '621 Application were initially rejected. Diep initially rejected the '569 Application on July 3, 2013, on two grounds: double patenting (can't get two patents on the same thing) and obviousness (the "invention" was not different enough from what came before). In making the obviousness rejection, Examiner Diep relied exclusively on patents or patent applications. Shortly after that, on August 5, 2013, Rahman (faced with the exact same claims that had just been rejected) rejected the '621 Application for the same reasons.

But from there, the two applications and their histories at the PTO diverge.

"YogaGlo intends to enforce its intellectual property rights"

On August 26, 2013, despite having both its patent applications initially rejected on multiple grounds, YogaGlo sent demand letters to its competitors, includingYoga International. In the letter, YogaGlo (through its lawyers) pointed to its patent applications and stated its belief that Yoga International "streams online fitness classes that mimics [sic] the method and technique of YogaGlo's U.S. patent application." Although YogaGlo did not explicitly demand that Yoga International remove the videos it believed infringed YogaGlo's not-yet-existing rights, it warned that the letter "shall serve as actual notice of the existence of the YogaGlo Patent Applications" and "upon patent issuance, damages may be due retroactively to the date of patent publication."

Yoga International, concerned by the idea that a company could get a patent on filming a yoga class, decided to fight back. It told the yoga community about the letter and the yoga community went into uproar. Yoga Alliance, another Yoga organization, started a petition asking YogaGlo to withdraw its patent applications and received over 14,000 signatures.

YogaGlo responded with its own interpretation of the situation, saying that it filed for the patents "in order to continue to provide our community with this distinctive online yoga class experience at an affordable price." In effect, YogaGlo's argument appeared to be that without patent protection, it would cease to exist.

Except that for at least the first few years of YogaGlo's existence, this wasn't true. YogaGlo, it seemed, had been flourishing for many years without the patent protection it now felt it needed.

Patent Protection Not Required Nor Deserved

Patents are only supposed to be granted on what is novel and nonobvious. The Patent Office, in initially rejecting YogaGlo's patents, relied on other patents and patent applications. But filming a yoga class didn't seem to us like something that should (or would) be in a patent or patent application. Filming methods just aren't something that are traditionally patented (nor should they be).

Instead, it seemed to us that prior art for systems and methods for filming would most likely be found in actual films. So in order to help understand just how "novel" YogaGlo's invention was, we did an Internet search for other, similar "systems" and "methods." Below is a collection of just some of the videos we found, all uploaded or filmed before YogaGlo filed its patent application:

Based on our search, it seems like YogaGlo's patent should never have issued. But even more interesting is that last screen shot. Its similarity to Figure 2 of YogaGlo's patent applications is not surprising, because it is from YogaGlo's own website—and it's dated July 28, 2009.

This is a problem for YogaGlo. Even if something is novel and nonobvious, a patent should not be granted if the application is filed more than one year after the "invention" is made, used, or sold. This is commonly referred to as the "one-year statutory bar." Basically, you can't patent something once the public has known about it for over a year. The public policy rationale is that patents are meant, in part, to get inventors to disclose their inventions to the public. If the invention has already been disclosed, the applicant didn't need the patent "carrot".

The one-year statutory bar is well known by patent practitioners and is often used to invalidate a patent or prevent one from issuing. One organization, after receiving YogaGlo's letter, found YogaGlo's invalidating videos and recognized their importance. After receiving YogaGlo's letter, and before any patent issued, that organization sent YogaGlo's lawyers a letter and pointed to the videos as prior art,.

And Yoga International wasn't the only ones who noticed that YogaGlo shouldn't be able to get a patent. A comment on YogaGlo's own website on the post about YogaGlo's patent applications, dated before any patent issued, also highlighted the videos:

Back at the Patent Office

Because YogaGlo filed its original patent application (the one to which both its applications claimed priority to) on August 27, 2010, more than one year after it had posted videos using its "invention," no patent should have been allowed. The one-year statutory bar prohibits it.

But if the PTO doesn't know about prior art, it can't use it to reject an application. This is why the patent office relies on patent prosecutors (the people who file applications on behalf of inventors) to bring to light prior art known to the applicant. The PTO itself will do a search, but it's expected that prosecutors will point out art too. Indeed, they have a duty to do so.

In prosecuting the two applications, Mills and YogaGlo were represented by patent prosecutor working at the same office as the lawyer who sent Yoga International and others the letter about YogaGlo's patent applications. This is also the same the law firm office that received the responses, including its mention of YogaGlo's own invalidating videos. But despite the duty of disclosure, neither Mills, YogaGlo's lawyers, nor anyone else associated with YogaGlo notified the PTO about YogaGlo's own videos that implicated the one-year statutory bar.

At this point, its important to note is that the '569 Application was filed under what's called the "Accelerated Examination Program." This program allows applicants to get their applications reviewed more quickly if they can meet certain requirements, including making a statement regarding the "most closely related" prior art and how the "invention" is different than what came before. (Normally a hopeful patentee isn't required to particularly point this art out. It's enough to merely list it on a form). YogaGlo identified and discussed some prior art, but it failed to bring up the most damning examples: its own videos.

So on October 7, 2013, when it came time to address the examiner's initial rejection, YogaGlo did not identify its own videos and correct the failure to identify them at the outset. Instead, it filed an "amendment" and "request for reconsideration" of its '569 Application. YogaGlo modified its claims slightly, and argued that the claims were now patentable. The reason? The prior art, according to YogaGlo, didn't disclose "a line of sight corridor." In plain English: YogaGlo argued that when filming a teacher from eye level at the back of the room, it wasn't known or obvious to keep students from blocking the camera's view of the teacher (yes, really).

Incredibly, Mills and YogaGlo—despite Yoga International's letter, posts on their blog, and explicit recognition of the duty of candor—never told the PTO about its videos. Instead, on October 29, 2013 and without explanation, Examiner Diep allowed YogaGlo's patent, having never been given the chance to consider the art that was so clearly important.

To be clear, Examiner Diep did a search for prior art. He searched databases available at the PTO, but he did not do a YouTube (or even general Internet) search. Perhaps unsurprisingly, he did not find YogaGlo's videos, or the many other videos that predated YogaGlo's "invention," among the patent databases he searched. The '569 Application issued on December 10, 2013, almost two months after YogaGlo received the information pointing out YogaGlo's prior art videos, and more than four years after YogaGlo had first started posting its videos.

If at First You Succeed, Try Again?

Having received one patent, YogaGlo continued to seek a second through its '621 Application. On February 5, 2014, like with the '569 Application, YogaGlo modified its claims slightly and argued that the claims of the '621 Application were now patentable. Again YogaGlo did not disclose its own videos. But unlike Examiner Diep, Examiner Rahman searched for prior art on YouTube. Below is part of his results:

Through this YouTube search, Examiner Rahman was able to easily find YogaGlo's own videos that implicated the one-year statutory bar. On that basis, the '621 Application was finally rejected on March 7, 2014.

But in a practice that has become all too common at the patent office, the "final" rejection became not so final. On September 17, 2014, YogaGlo asked the examiner to reconsider the application. In an act that can only be called brazen, YogaGlo argued that it's own videos were not prior art, because "while the video appears to show the line of sight corridor, it is clear that it does not show the widening of the corridor as shown in Fig. 1"

Here is Figure 1 from the application with another frame from that "John Friend" video:

We're having a hard time figuring out how this does not blow YogaGlo's claim out of the water. When looking at the frame (a different one than that cited by the examiner), YogaGlo's argument seems completely frivolous to us. But because the examiner cited to a different frame, YogaGlo was able to cite to some minute distinction between its claim and the picture Examiner Rahman found, and ignored the rest of its video. But even if a distinction exists, why does it matter? Is this really something that's a "patentable distinction" over the prior art? Should someone be entitled to a patent every time a room is set up differently or a camera is moved slightly?

Practices at the PTO encourage applicants to keep filing, and to make this sort of meaningless distinction. Examiner Rahman had already finally rejected this application once. But YogaGlo is insistent. Unfortunately, if Examiner Rahman wants to get this work off his plate, the quickest and easiest way is to allow the patent. And applicants know this.

Symptom of a Larger Problem

YogaGlo's patent never should have been filed, and never should have issued. Even more importantly, hopeful patentees should not be incentivized to continue to push for patents despite clear evidence showing the claims are invalid.

In the broader view, it seems unlikely that patents are needed in order to incentivize people to develop new systems and methods for filming. Hollywood has existed for many generations without every director rushing out to patent new styles and angles of filming. Most likely, this is because patenting a new way of filming just doesn't seem like something that patents were meant to protect, and nor are they needed in order to encourage the next Stanley Kubrick. And YogaGlo seems to acknowledge this: their own statement says they wanted to protect the "look and feel" of their videos. This is not something our patent system was designed to protect. But our culture of overclaiming of intellectual property rights likely encouraged YogaGlo to file for a patent and incentivized YogaGlo to seek it at all costs—including honesty. We don't know why YogaGlo's decided to not disclose its own videos, but its failure to do so seems questionable (at best). We asked YogaGlo's lawyer for comment, but he declined.

The PTO relies on applicant disclosures, and should be able to, but in this case, it is clear that such reliance was misplaced. And what is also clear is that an incentive exists to not disclose. The fee worksheet in the file history for the '569 patent application shows that YogaGlo paid $663 when it filed its application. After paying a few more thousand in fees during the pendency of the application, YogaGlo got an almost twenty-year monopoly on its systems and methods for filming a yoga class.

We strongly believe that YogaGlo's patent never should have issued. And we're glad YogaGlo has belatedly agreed. YogaGlo's pending patent application is as deeply flawed as the issued patent. It should do the right thing and abandon its application too. Although pressure from the Yoga community convinced YogaGlo to do the right thing at least with respect to the issued patent, for most people getting rid of a patent is not so easy. To invalidate a patent, the cost is a minimum of $6,000, which is the cost of filing an ex parte re-examination.

Fortunately for the Yoga community, people were willing and able to fight back. But often communities aren't able to do so, and EFF can't help with every stupid patent we find (trust us, we see a lot of them). This is why reform is needed: too many incentives exist to encourage patent applicants to be less than forthcoming, and it is too expensive and difficult to challenge stupid patents. We hope that in telling this story we can start a dialog on how to fix the system to make sure that no one gets a stupid patent on filming a yoga class again.

from the i-see-you dept

With all that's gone on with the NSA leaks, one thing has been made abundantly clear: the idea of operating in the world without having eyes on us or digging through our motives, is dead. The NSA, admitting it or not, has unilaterally decided that we don't deserve privacy and that our daily lives are an open book should they have any contrived reason to take a peek. Even members of Congress appear to be under such scrutiny.

The NSA sent someone bearing the nametag “Neal Z.” to the University of New Mexico’s Engineering and Science Career Fair today, in the hopes of recruiting young computer geniuses to help manage the yottabytes of data it is collecting about you. But instead of eager young applicants, Mr. Z. encountered University of New Mexico alumnus Andy Beale and student Sean Potter, who took the rare opportunity of being in the room with a genuine NSA agent to ask him about his employer’s illegal collection of metadata on all Americans. Mr. Z. did not like that one bit.

Should you be unable to see the video, the exchange is fairly polite, if persistent, from behind the camera. The NSA employee, on the other hand, is both combative and at one point grabs the interviewers phone. Prior to that, the employee repeats the discredited claim that the NSA does not collect intelligence on US citizens, which by now everyone knows is simply false. Then the name calling starts, followed by the attempt to grab the phone. The two interviewers were subsequently ejected from the building under the notion that they were causing a disturbance. The NSA employee was clearly unhappy about being videotaped and probed.

And it's easy to sympathize with him as a US citizen, since the organization he works for has done the same thing to American citizens. We're brothers of a kind, both having to endure an undue yet meticulous examination of our activities as we simply attempt to go about our lives, working and living less free than we were meant to be. That the irony appeared to be lost on our NSA friend isn't terribly surprising to me. The Ministries of Oceania are not known for their sense of humor, after all.

from the inevitable-law-enforcement-response:-'make-me' dept

The NYPD may be arbitrarily slapping the word "secret" on its internal documents and making sure all of its intelligence stays safely within its walls, but when it comes to communicating with the outside world, it's apparently a one-way transaction. It talks (when it wants to and can completely guide the narrative) but it rarely ever listens. Case in point: the Brooklyn DA says he won't prosecute low-level marijuana possession charges, so naturally the Brooklyn division tells its officers that low-level marijuana possession arrests will continue uninterrupted.

A federal lawsuit, which cites arrests of people who recorded police confrontations or activity, was filed on Tuesday asking a judge to declare that people have a right under the First Amendment to film or record officers working in public places.

The suit was filed in Federal District Court in Manhattan on behalf of one of the people arrested, and seeks a permanent injunction barring New York City employees from retaliating against those who record them in public.

The NYPD apparently believes it's exempt because there's been no specific ruling from a district court covering its jurisdiction. This despite the fact that the DOJ itself fired off a letter in response to a lawsuit brought Baltimore that stated plainly:

[T]he justification for this right is firmly rooted in longstanding First Amendment principles.

This also despite the fact that its own Patrol Guide say photographing police isn't an arrestable offense.

[T]he Police Department Patrol Guide states that “taking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

This also despite the fact that the NYPD's own chief of federal litigation made the following statement:

"[B]ystanders are allowed to film police officers as long as they’re not interfering with the officers’ duties and/or police operations.”

The NYPD may be trying to dodge this on jurisdiction specifics, but note that the DOJ's letter doesn't specify this only applies to Baltimore. The letter plainly says "First Amendment right," which is something applied to all Americans, regardless of jurisdiction. It also references the Glik decision, which plainly established citizens' right to record.

Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.(2) See, e.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

The footnote (2) begins with this unambiguous sentence:

There is no binding precedent to the contrary.

And yet, the NYPD continues to harass, arrest and shut down citizens who record police interactions. Shawn Thomas' experience, which we detailed here earlier, saw him harassed by a police officer who claimed he was interfering with police business despite the fact that he had to walk 30 feet away from the detained suspect to deliver this statement. The whole interaction began with police intimidation tactics and culminated in the arrest of Thomas.

Debra Goodman, was taking a cellphone video of paramedics assisting a woman in a wheelchair on West 73rd Street and Broadway last year before a police officer intervened.

"He asked me to produce ID. I refused, because I knew I wasn’t doing anything wrong,” Goodman told CBS. “And then he grabbed my arm and handcuffed me, and told me I was under arrest.” She was held for 25 hours.

This lawsuit asks for a permanent injunction prohibiting retaliatory actions from NYPD officers against those who record them. Time and money are going to be poured into "protecting" a right that already unequivocally exists. And there's no guarantee the NYPD will pay attention even if it receives a jurisdiction-specific injunction. After all, a federal appeals court ruled the state's wiretapping law (something frequently abused to prosecute citizens for recording cops) was unconstitutional and this decision was greeted by Morgan County prosecutors and law enforcement with a "so, business as usual" shrug. It took the involvement of the ACLU to get Morgan County to align itself with a ruling that plainly stated recording police was not a violation of the wiretapping statute.

What the NYPD is doing is ignoring common knowledge and several court decisions. The DOJ's letter may have been addressed to Baltimore's police department, but the wording (and the cases cited) apply to every law enforcement agency. The US government itself has declared that citizens have this right, something that comes bundled with the First Amendment. It's utterly ridiculous that anyone should have to force the issue in a "local" court in order to make the NYPD respect citizens' First Amendment rights.

from the the-grabbing-hands-grab-all-they-can... dept

Want to record the police while they're on the job? Go ahead, the Supreme Court has (again) upheld your First Amendment right to do so, provided you aren't on the wrong side of way too many exceptions. This is your right, no matter what the officer 90 feet away is yelling about "interference." That's just plain ignorance on the part of that officer.

At 3:00 into the video, the traffic stop has concluded and Andrew starts to walk away, when he is confronted by Deputy Stokes of the Gray County Sheriff's Office. Stokes, who has since become employed by the Pampa Police Department, immediately attempted to seize the photography equipment as evidence. Stokes refuses to get a supervisor on request, tells Andrew to stop talking, and threatens to arrest Andrew when Andrew points out that he has a First Amendment right to speak. When that happened, Stokes said that "I think I'll make up stuff" and attempted to grab the camera from Andrew (at 3:50).

"Seized as evidence." This is one of the oldest tricks in the book. Stokes wants to grab a camera (and actually gets ahold of it twice) but can't think of a good reason. So he falls back on this one. "Evidence" of what exactly, though? The concluded traffic stop? Stokes' own ignorance of the legal right to record law enforcement officers? The charges he's going to attempt to bring against the photographer? It would appear to be the latter, especially with Stokes' assertion that he's willing to "make up stuff."

But the obnoxious, abusive stupidity doesn't end there.

At about 4:20, the demand for ID begins by Stokes and he really shows his ignorance. First, as has been notednumeroustimesbefore, in Texas, under the Failure to Identify statute, one has to be under arrest to be obligated to provide their name, residence address, and date of birth to an officer. Otherwise, the statute merely makes it an offense to provide fictitious information.

"Failure to identify" is a Texas law enforcement specialty. Where other departments are forced to rely on nebulous charges like "interference," "disorderly conduct," wiretapping law violations or straight-faced discussions of law-enforcement-centric urban legend "the cellphone was a gun," Texas officers deploy "failure to identify" when shutting down camera-wielding citizens. But the law doesn't work the way they think it does.

After making this "error," Stokes compounds it by claiming -- in direct opposition to a great many court decisions (as well as common sense) -- that it's illegal to record police officers. This, too, fails to stick. The citizen knows the law better than Stokes does and other officers begin to realize Stokes is taking this interaction in a dangerous direction and convince him to walk away.

While I would not expect police officers to know every nuance of the many laws they enforce, I would at least expect them to remain current on the ones that are routinely abused. If they don't know the details, the problem lies with those responsible for training them. There's no excuse (other than simply being a bad cop) for an officer to make this many errors in the course of one interaction. Any law enforcement agency should be up-to-date on court decisions and (especially) lawsuits that target oft-disputed areas like citizens with cameras. At this point, an officer needs to be wilfully ignorant to remain this out of touch with the reality of the situation.

Stokes tried intimidation and his own, very personal version of legal statutes to get his way. He even tried a little physical force. But the cameraman stood up to him and he was ultimately forced to back off. But that's only one of the several dozen interactions between police and people exercising their First Amendment rights. The person doing the recording stayed out of jail and was never charged with anything, somewhat of a rarity in situations where laws are improperly forced into service by someone with more power than knowledge.

from the a-new-high-in-low dept

Here's how stupid legislation is assembled.

HOT BUTTON TOPIC + BRIEFLY CONCERNED LEGISLATOR - COMMON SENSE = A proposed amendment so brain dead, its author should be immediately hooked up to an EEG.

The "hot topic?" The form of recorded violence known colloquially as the "knockout game." Said "game" is played by a minimum of one willing participant and one unwilling participant. The goal is to knock out the unwilling participant with one punch, preferably while being recorded for posterity/evidence. Video is then uploaded to YouTube (or other services) for appreciation by those who like this sort of thing.

The legislator who apparently failed to consider the mind blowing amount of unintended consequences built into his legislation? South Carolina senator Vincent Sheheen.

"Section 16-1-65. (A) It is unlawful for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60 [violent crimes], during its commission. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be fined not less than five hundred dollars or more than five thousand dollars or imprisoned not more than five years, or both.

(B) A person who violates the provisions of subsection (A) and who publishes, or otherwise makes the video or audio recording, digital electronic file, or other visual depiction or representation available for public display is guilty of a separate offense and, upon conviction, must be fined not less than five hundred dollars or more than five thousand dollars or imprisoned not more than five years, or both.

(C) A person who knowingly aids in the commission of a violation of subsection (A) or (B) or is an accessory before or after the fact in commission of the violation of subsection (A) or (B) is guilty of a felony and must be punished in the same manner prescribed in subsection (A) or (B), as applicable.

(D) The provisions of subsection (A) and (B) do not apply to:

(1) viewing, photographing, videotaping, or filming by personnel of the Department of Corrections or of a county, municipal, or local jail or detention center or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Department of Corrections or a county, municipal, or local jail or detention center or correctional facility;

(2) security surveillance in bona fide business establishments;

(3) accidental or incidental recordings;

(4) any official law enforcement activities;

(5) private detectives and investigators conducting surveillance in the ordinary course of business; or

(6) any bona fide news gathering activities."

So, an amendment aimed at hauling in participants in the "knockout game" (the person holding the camera) will now criminalize all sorts of recordings. Sheheen pitches it this way:

“Really this is another tool for law enforcement to use to make sure that somebody can't claim, 'Oh, I didn't commit that crime, I just videotaped it,' when in reality they were part of the problem in the first place."

Really, this is another tool for law enforcement to make sure that somebody can't record police misconduct or use of excessive force. Sure, the person recording didn't commit the crime being recorded, but they have now committed the crime of recording criminal activity. If a law can be twisted by bad cops to prevent or seize recordings of their dubious behavior, it very definitely will be.

So you see a robbery occurring, or the police illegally beating a citizen, and you videorecord it — you’ve now committed a felony, unless you can persuade a court it’s a “bona fide news gathering activit[y].” (The recording isn’t “accidental or incidental,” since you’re making it deliberately.) Or say your friend is being attacked, and you record the video to give to the police or to use in a civil suit; perhaps you even expected an attack, for instance if you’re going to a potentially violent demonstration or going past a place where thugs have routinely attacked people of some race, religion, or sexual orientation. That too is a felony.

And while one could interpret any citizen action aimed at gathering information as “bona fide news gathering activit[y],” that’s far from clear. It’s an argument I’d make as your defense lawyer, but it’s not an argument you can feel confident about if you’re deciding whether to make the recording. If the law is enacted, any suitably cautious South Carolinian would be well-advised just not to record any crime he sees, if he wants to avoid the risk of prison time.

Sheheen's amendment is ugly all over. While it makes exceptions for "bona fide business" surveillance, it makes no such exception for cameras mounted by private citizens to protect their own property. Someone breaks into your house and you've got the tape to prove it? Guess what: both you and the perp have violated the law.

Volokh points out the problems inherent in proving newsworthiness to prosecutors. The same uphill battle awaits those with accidental or incidental recordings. Try proving that negative in the courts while facing a zealous DA.

Not only does this criminalize citizens' recording (and citizen reporting -- bloggers aren't journalists, etc.) but it has the potential to curtail law enforcement efforts. Stupid people record their own criminal activity all the time but putting this law on the books may make them decide to leave the camera at home. Sure, they're already committing a crime, but why add additional months to the sentence? Why would someone purportedly trying to be tough on (a certain) crime want to discourage the generation of useful evidence?

This kneejerk amendment also overlooks the fact that many laws are already on the books for prosecuting camera-toting friends of assailants. Like aiding and abetting. Or conspiracy to commit a criminal act. There are ways to bring the "cinematographer" down without putting regular, law-abiding citizens at risk of violating an astronomically asinine law simply because they managed to capture evidence of criminal activity with their cell phone or personally-owned surveillance system.

Then there's this:

…or other visual depiction or representation of a violent crime…

Not only will it be criminal to record criminal activity, it will also be criminal to create a graphic novel depicting criminal acts, depict a criminal act in a play, movie, television show or YouTube video, or perform a classic Punch and Judy routine. "Visual depictions" of fake crime? Also a crime. Yes, these scenarios are blatantly ridiculous, but that's precisely what the law states. If Sheheen doesn't want people mocking his stupid amendment with scenarios no self-respecting law enforcement officer (and even some LEOs with no self-respect) would drop the hammer on, then he should have written his amendment less stupidly. Or not at all.

I now turn this over to the comment section, who should be able to top these "what if" scenarios in a heartbeat.

from the also-possession-of-camera-with-intent-to-distribute-recordings dept

Words like "interference" or "obstruction" seem to be thrown around quite frequently when law enforcement officers decide they'd rather not be filmed while on duty. How the passive act of filming can interfere with investigations or obstruct officials is left to the imagination. Fortunately (I guess...), law enforcement officials have very vivid imaginations. This allows them to arrest, detain, hassle or confiscate devices as needed, in order preserve the peace by chilling speech.

Shawn Nee is an award winning street and documentary photographer living in Hollywood, California. He says that on June 2, 2013, his right to take photos under the First Amendment was violated when the Los Angeles Police Department officers detained him while working in Hollywood.

Nee was standing on a residential sidewalk taking pictures of a man he had been photographing for years when LAPD officers showed up about 90 feet away to investigate a domestic dispute.

The whole incident, caught on "tape" thanks to the three body cameras Nee wears, shows officers covering a lot of ground to reach the "interfering" photographer. As is almost always the case, the officers' first move is intimidation, with one demanding Nee identify himself and his employer.

When this fails, the officers demand he stop filming and put his camera down. Nee asks why he's being detained.

OFFICER: For interviewing ... interfering with a police investigation.

Hmm. Passively operating a camera from 90 feet away seems like the least efficient way to "interfere" with a police investigation. Maybe the sound of the shutter was distracting.

Nee was then taken to the station and detained while officers attempted to question him. Unfortunately for the interfered, Nee asserted his right to remain silent and refused to speak until his lawyer was present. After 90 minutes he was released -- without being charged.

After being released, Nee spoke to a police supervisor who offered this "insight" on the interference claims.

NEE: My understanding is that I was detained for taking photos in a public space.

VIDAL: When it interferes with the job of police then it becomes a problem. At that point, you no longer have that freedom to go ahead and take your pictures.

Possibly. Possibly not. Vidal makes it seem cut-and-dried, but it really isn't. This all depends on the laws governing the police department. California's penal code gives law enforcement officers a lot of leeway when deciding what does or doesn't "interfere" with an officer performing his duties, but it's still hard to see how this fits a person standing 90 feet away taking pictures.

148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

In fact, it would seem that any "delay" was caused by the officers' decision to hassle a photographer, rather than continue in their "discharge of duty." Another way to look at this is that the officers felt that questioning and detaining Nee was actually the "duty" they were "discharging," and his refusal to state his name "obstructed" or "delayed" them. Of course, that assumes the photography itself was a criminal activity, which it certainly wasn't.

Either way, the line of reasoning being pushed by Vidal is suspect, if for no other reason than Vidal himself isn't the most trustworthy of cops.

Sergent Vidal was named as a "problem officer" by the Independent Commission on the Los Angeles Police Department (Christopher Commission) in the early 1990s, as reported by the Los Angeles Times in 1995. The Commission named 44 officers with "six or more complaints of excessive force or improper tactics between 1986 and 1990."

More disappointing, this specious line of reasoning was upheld yet again by another member of the LAPD.

Reason TV showed the video to Andy Neiman, the officer-in-charge at the Media Relations Section at the LAPD. He said he could not comment on the video specifically but said of individuals taking pictures, "If their physical proximity to the investigating officers becomes interfering where an officer has to stop what they're doing to admonish that individual that they're too close or could you stand back because they are distracting from the officer's business, then that's where it becomes an issue."

90 feet away can't be remotely considered "physical proximity" unless we're talking building locations. It's pretty tough to sell the better part of 100 feet as being close enough to interfere with police business. Neiman probably knows better than to comment on a video showing officers confusing 90 feet of separation for "standing between the officer and the door," as the LAPD is currently being sued by Nee and two other photographers for past abuses.

At some point, the perceived benefits of shutting down citizens with cameras are going to be outweighed by the millions of dollars in lawsuit settlements. Until then, it appears the LAPD is going to continue allowing officers to use the term "interference" to violate the public's First Amendment rights.